Dickerson v. Gritten

Mr. Justice Harker delivered the opinion of the court. In this case two questions are presented for decision: First. Did appellee join in the execution of the deed to appellant? Second. Was Laban Gritten seized of such an indefeasible estate in the premises described in the deed as would entitle appellee to dower therein upon his death? It appears in evidence without dispute that Laban Grit-ten executed the deed. But it is contended that appellee’s signature to it is a forgery, and that the officer’s certificate of acknowledgment, so far as she is concerned, is false and fraudulent. In addition to the certificate of the notary, David Crawford, we have in the record the testimony of three witnesses, Laban Gritten, Ezra Dickerson and William Hines, who stated positively that they were present and heard appellee direct Crawford to sign her name to the deed, and heard her acknowledge to him that she executed it. Opposed to that evidence we have the testimony of appellee denying that she at any time directed Crawford to sign her name to the deed, and denying that she ever acknowledged her execution of it to him. As tending to corroborate her, she introduced testimony showing that she was able to write her own name, and did so when executing deeds, and was not compelled to sign by mark, and that Crawford’s reputation for truth and honesty was ,bad. It is insisted also that the absence of the original deed, and the vague proof as to what had become of it, is a circumstance in support of appellee. When the testimony was taken Crawford was dead. Quite a number of witnesses testified that his reputation for truth and honesty was bad, while there are others who testified that it was good. There was also testimony tending to impeach Laban Gritten by showing that he had stated in the presence of witnesses that appellee did not sign the deed. There are many other conflicts, and we are forced to say, after a careful consideration of the entire testimony, as it appears in the master’s report, that we are unable to reach a satisfactory conclusion upon the question of whether she executed the deed. Our minds are left in grave doubt. While the certificate of the acknowledgment of a deed may be impeached, it has been repeatedly held in this state that the proof to sustain such charge must be of the clearest, strongest and most convincing character. Kerr v. Russell, 69 Ill. 666; Canal and Dock Co. v. Russell, 68 Ill. 428; Lickmon, Executor, v. Harding, 65 Ill. 505; Russell v. Baptist Theological Union, 73 Ill. 337; Heacock v. Lubuke, 107 Ill. 396; Sassenberg et al. v. Huseman et al., 182 Ill. 341. In Russell v. Baptist Theological Union, supra, Chief Justice Walker said : It is a rule that the acknowledgment of a deed can not be impeached for anything but fraud, and in such case the evidence must be clear and convincing beyond a reasonable doubt; and while the making of a false certificate would be a fraud upon the party against whom it is perpetrated, there is in favor of the officer the fact that he is under his official oath when he makes the certificate, and the liability to indictment, conviction and infamy is certainly as strong incentive to truthful and honest action as is the restraint imposed on an interested witness, struggling for the gain following success in a suit, and escaping loss by defeat.” When we apply to the evidence in this case the doctrine announced in the cases cited, we do not feel justified in holding that appellee did not sign the deed. Upon the other questions, however, we entertain no doubt. The evidence convinces us that when Dickerson conveyed the land to Gritten it was not in pursuance of any bargain to sell, but was done for the purpose of getting the title into Dickerson’s wife, the appellant, in order that the land might not be reached by creditors of Dickerson. Dickerson and his wife were living upon the land at the time and had occupied it as their home for a number of years. They continued to occupy it and control it after the conveyance the same as before. While there is some proof that Gritten exercised certain acts of ownership, it is of a vague and uncertain character and we think that what he did do in that direction was explained in a manner consistent with the contention that he was not in fact the owner. His statements that he was the owner, made to third parties, and the unsworn answer to a suit in equity to set aside the conveyance because fraudulent as to creditors were not sufficient to overcome the proofs of appellant as to the actual ownership and occupancy of the land. H o doubt he and Dickerson, under the advice of Crawford, and for the purpose of making effective the scheme of getting the title into appellant so that the land could not be reached to satisfy claims against Dickerson, represented that the transaction was a bona fide sale, but evidence oí such representations could only be regarded in the light of impeachment of them as witnesses. They could not be considered by way of estoppel against appellant. Hot-withstanding such representations, the facts remain that Gritten never took, or attempted to take, possession of the land or any part of it; that he never received any of the rents or profits of the land; that Dickerson continued in the possession and control of the land, just as he had before the deed to Gritten was executed, and received the rents and profits just as he had before, and that a conveyance was soon made in pursuance of the agreement that Gritten should be the medium, merely,' of the voluntary conveyance from Dickerson to his wife. As Gritten held the land in trust only, he was not seized of an indefeasible estate of inheritance and his wife could have no right of dower in it. Bailey v. West, 41 Ill. 290; King v. Bushnell et al., 121 Ill. 656. So whether she executed the deed or not, she had no standing in a court of equity and her bill should have been dismissed for that reason. • The decree will be reversed and the cause remanded, with directions to the Circuit Court to dismiss the bill. Mr. Justice Weight took no part in the decision.